Breaking Down the #Memo

By now you’ve likely heard of, and perhaps read, the much-vaunted memorandum written by the Republican majority staffers on the House Permanent Select Committee on Intelligence (HPSCI) and released to the public this past Friday. In short, the memo claims that evidence that HPSCI has uncovered raises serious questions about the legitimacy and legality of electronic surveillance of a U.S. citizen, Carter Page, under the Foreign Intelligence Surveillance Act (FISA). Some outlets (and members of Congress) have said that the memo uncovers a scandal worse than Watergate that totally discredits the DOJ investigation of Russian interference in U.S. elections and any connection to the Trump campaign being led by Special Counsel Robert Mueller. Other commentators have called the memo “a dud.” In the run-up to its controversial release, many Democrats on HPSCI suggested that releasing the memo would expose “sources and methods” of intelligence collection—among the most protected of the U.S. government’s secrets—while Republicans on that same committee suggested that it proved foul play by government investigators and lawyers leading up to (and beyond) the 2016 presidential election.

So what’s going on? What does the memo actually say and how is it significant? First, I encourage you to read it for yourselves. It’s only 3-and-a-half pages long. After a close read, it’s safe to say a few things about the memo and what it shows. First, it’s pretty clear that, at least in its published form, the memo does not reveal sources or methods of intelligence. That doesn’t mean that it’s not a big deal that it was declassified; I’m aware of no prior instance in which Congress has revealed the existence—much less named the target—of a specific FISA electronic surveillance order. It’s also apparent that the memo reveals next to nothing that substantiates the charge that the FISA process was abused. That’s not to rule out the possibility that the FISA process was abused by government officials, just to say that the memo itself doesn’t come anywhere close to making that case. Below, I’ll try to explain why.

Backing up a bit, it might be helpful to have a sprinkle of background information about FISA. FISA was enacted by Congress in 1978 in the aftermath of the Watergate scandal and the congressional Church Committee investigation that revealed significant abuses by U.S. intelligence agencies in collecting information about U.S. citizens in the absence of a warrant or other legal process. FISA is a complicated statute that regulates many tools of intelligence collection. If you’re interested, National Security Investigations and Prosecutions is a leading treatise with extensive coverage of the statute and its history. For purposes of the memo, the most important provisions are in Title I of FISA, covering the process to obtain an order authorizing electronic surveillance of a suspected foreign agent from the Foreign Intelligence Surveillance Court (FISC). The FISC consists of 11 federal judges from district courts around the country, who are in turn appointed by the Chief Justice of the United States to serve 7-year terms on the FISC, in addition to the lifetime appointment to the district court they are already serving. To obtain an electronic surveillance order, the government has to show several things, including that there is probable cause to believe that the target is a “foreign power” or an “agent of a foreign power.” For “United States persons”—a category broader than, but inclusive of, U.S. citizens—the definition of the term “agent of a foreign power” generally includes a requirement that the person’s activities “may involve a violation of the criminal statutes of the United States.” For U.S. persons, a FISA electronic surveillance order expires after 90 days unless the FISC (either through the same or a different judge) grants an extension based on new evidence showing probable cause. Proceedings before the FISC are almost all under seal due to the classified information before the court. Moreover, apart from statutory procedures for the court to appoint an amicus curiae to argue against the government’s position in certain matters, the government generally practices before the FISC in Title I cases without any other party’s involvement.

The memo alleges that the process for obtaining a FISA order to monitor Mr. Page’s communications was flawed because DOJ and the FBI did not disclose to the FISC that one of the bases for the order—the infamous Steele dossier—was prepared as opposition research on behalf of the Democratic National Committee. It notes that the DOJ sought and obtained a FISA order for Mr. Page’s communications on October 21, 2016 (about three weeks before the presidential election), and that the order authorizing electronic surveillance was renewed three times. Doing some simple math based on the 90-day surveillance periods, this means that the electronic surveillance order for Mr. Page was renewed once during the transition and twice under the current administration. In addition to alleging that the dossier’s origin wasn’t disclosed to the FISC, the memo also notes that Mr. Steele (the dossier’s author) had discussions with a senior DOJ official (Bruce Ohr) that revealed a strong ideological bias against then-candidate Trump, and that that bias was not communicated to the FISC either. So why don’t I think the memo succeeds in making its case? I’m glad you asked.

First, it’s fairly obvious that the entire controversy over the memo’s release was manufactured. The President has the authority to declassify the underlying FISA application and the FISA order itself at will. Those are the documents that will settle any questions about what was disclosed and whether any omissions were material. Releasing such documents would be a big deal. Unlike the memo itself, they likely would reveal sources and methods of intelligence collection. But it could probably be done in redacted form, and probably would be done if the documents actually show that Mr. Page or the Trump campaign were unfairly treated. Moreover, so far as the public record shows, the only person who voted to release this memo who has actually read those materials is Representative Trey Gowdy. Devin Nunes, the Republican chair of HPSCI and the leading champion of both the memo itself and its release, never read them, as confirmed in the transcript of the hearing at which the release was approved by the committee and in a footnote to Stephen Boyd’s letter to the committee on behalf of DOJ urging that the memo not be released. The rest of those who voted to release the memo are also flying blind.

There are two potentially concerning things in the memo that I’d want to know more about: (1) how the specific portions of the Steele dossier that were included were actually described and corroborated, and (2) more detail regarding Bruce Ohr’s communications with Mr. Steele, a subject on which the memo is especially opaque. But even with those uncertainties, the memo is so lacking in detail and (seemingly) intentionally misleading at so many points that the document as a whole is unpersuasive. All but a few of my problems with the memo assume that every sentence in it is true. The memo looks even weaker when you consider two—in my view—mischaracterizations of information in the public record, and (potentially) some factual objections that Democratic members of HPSCI have raised. I won’t mention those here, instead taking the truth of the memo as a given.

The biggest problem with the text of the memo is that it does not explain why there should have been any discussion of the Steele dossier’s origins in the three applications to extend the original order. Indeed, the memo does not even allege that the dossier was used in those renewal applications. Why would it be? To be renewed, one must show that new evidence, traditionally that obtained from the surveillance itself, shows probable cause that the target is an agent of a foreign power and that it is worth continuing with the surveillance to obtain more foreign intelligence information. The 90-day limit would be meaningless if all you had to show was the same information you provided earlier. In other words, there was enough from what the government found while monitoring Mr. Page’s communications and subsequent investigation to convince a federal judge three times (or perhaps three federal judges) that there was probable cause to extend the order. The memo inexplicably fails to grapple with the fact that for at least the final extension, and almost certainly the last two, the Steele dossier and its origins as political opposition research were subjects of public scrutiny, so the idea of tricking the judge(s) is hard to believe. On the face of the memo itself then, the extension applications seem like complete nonstarters as far as meaningful controversy.

That leaves the initial application. First, what’s the motive? To hurt then-candidate Trump’s electoral chances? The application was October 21, 2016—too late to gather intelligence that could plausibly affect the outcome of the election. Also the target was quite far removed from where you’d need to aim to bring down an administration: Carter Page was a low-level adviser and had left the Trump campaignin September 2016, a month before the order was obtained. In other words, for those claiming that the memo proves there was inappropriate surveillance of the Trump campaign to be correct, the U.S. intelligence community would need access to a time machine.

The memo nowhere contends that there was not probable cause for the order. It does not identify (or even allege the existence of) a single false fact in the application itself (other than perhaps a mistaken assessment by the FBI about the source of a Yahoo piece—though the memo is unclear about whether that mistaken assessment was part of the application). Then there’s the failure to provide publicly known context about Page that would have featured prominently in any application for an electronic surveillance order: he was a subject of investigation for Russia ties going back to 2013. The FBI even warned him that Russian intelligence was likely trying to recruit him. His meetings with Kremlin cutouts continued nevertheless.

I’m afraid that the memo gets a bit cute with adverbs and prepositions when it describes the chronology of the Ohr–Steele communications, so much so that I can’t even tell what it alleges, and indeed the language seems designed to obfuscate that chronology. But there is no statement in the memo that the FBI or DOJ (other than Ohr himself, who would not have known about any FISA orders thanks to the same civil liberties protections that the memo purports to vindicate) knew of the Ohr–Steele conversations before the first application for an electronic surveillance order.

Further, as much as I may wish otherwise as a defense attorney, government agents do not have an obligation to fully explain all possible biases of a source in a warrant application, so long as the application is not misleading. Most informants in almost every criminal investigation are biased in some way (indeed are often criminals themselves hoping to avoid prosecution), and every judge knows it. Most courts reject post-hoc challenges to the validity of a surveillance warrant based on biased informants as showing no Fourth Amendment violation. Speaker of the House Paul Ryan makes the smart point that the FISC is arguably different because it is non-adversarial, and thus DOJ may have some greater disclosure obligations. But that’s often true even of ordinary criminal surveillance as well: a defendant could challenge a warrant after charges are brought, but wouldn’t know about it—or have the opportunity to challenge it—if that never happens, so the government’s may be the only perspective the judge approving the warrant will ever hear. The memo itself also omits several facts that are arguably inconvenient for its premise that Mr. Steele’s biases fatally undercut the FISA order, including: (1) there is no evidence that I’m aware of that the DNC or any of its proxies or affiliates encouraged or directed Steele to contact the FBI (he did that on his own, apparently because he was so troubled by his findings, the accuracy of which is a different question); and (2) Steele was a former British intelligence operative with a history of providing credible information to the FBI. These omitted facts provide important context that a responsible memo would have at least mentioned.

The memo has several other gaps that make it difficult to fully assess. For example, the memo claims that the application for the order extensively cites a Yahoo news article that does not corroborate the Steele dossier because Steele was one of its sources. But curiously, the memo doesn’t claim that the Yahoo article was cited for the purpose of corroborating the dossier, so the comment may be a non-sequitur. Similarly, the memo strangely says that there was no evidence of a conspiracy between Mr. Page and George Papadopoulos, the former Trump campaign adviser whose statements to Australian diplomats kicked off the Russia investigation. But there’s no allegation that the application says that they were conspiring, and no reason to believe that was a claimed basis for the order. Indeed, any mention of Papadopoulos likely served to provide context for the broader investigation.

Other than the Yahoo article and the reference to Papadopoulos, the memo tells us nothing about other evidence beyond the Steele dossier that was used to obtain the order, so it’s impossible to judge how important the dossier was. The memo doesn’t identify which portions of the Steele dossier were used, or whether those portions were corroborated. At least one commentator has implied that the dossier was likely a very prominent feature—the memo says only that the FBI admitted the order would not have been sought in its absence—because of the requirement that for a U.S. person to be an agent of a foreign power, the person’s activities must potentially involve criminal conduct. The dossier was crucial, so the argument runs, because other than the transactions referenced in the dossier, it’s hard to think of other potentially criminal conduct by Mr. Page. But that’s simply not true. The Foreign Agents Registration Act, which has been much in the newslately, imposes criminal penalties for failing to register with the Attorney General if one is an “agent of a foreign principal.” That category is broader in many respects (and narrower in some) than the definition of an agent of a foreign power for FISA purposes, but it assuredly includes the conduct in which Mr. Page is alleged to have participated.

The memo includes no mention of the judge who authorized the initial order (or the judge or judges who authorized the extensions). There’s no mention of the lawyer who performed the “Woods Procedures”—processes for verifying all of the statements in a FISA application named after the FBI lawyer who developed them—or whether there were any mistakes made in those procedures. There’s no mention of any FISC legal advisor (a staff attorney) who would have worked with DOJ if the court had perceived any gaps in the application. No mention of the wild implausibility of the implication that those who cleared this had any improper motive to harm the Republican candidate: James Comey, who signed off on the initial application and the first two extensions for the FBI, is a former Deputy Attorney General in the Bush administration. Rod Rosenstein, who signed the final extension application on behalf of DOJ, is a Republican appointed to his current post by President Trump. Dana Boente, the U.S. Attorney for the Eastern District of Virginia who signed the second extension application on behalf of DOJ, is a career civil servant elevated to serve as Acting Deputy Attorney General by President Trump after Sally Yates was fired. The memo is also devoid of the indicia of serious oversight one would expect to see in a document exposing major abuse: a call for an Inspector General investigation, FISA reform, or perhaps corrective action by the Executive Branch. The memo contains a straightforward acknowledgment that the dossier it focuses on (which the memo doesn’t even describe as false) was not the impetus for the Russia investigation. This memo’s release was opposed and concerns about its material omissions raised by Trump appointee Chris Wray and in a letter by Trump appointee (and former Jeff Sessions staffer) Stephen Boyd, both of whom are unlikely to be carrying water for the Democrats.

If you’re going to release findings that allege wrongdoing (with the subject line “FISA Abuses at the DOJ and FBI” no less), more than one person among those who voted to release the findings should have read the underlying materials. Similarly, if the release will be prefaced by public claims that the facts uncovered are stunning and worse than Watergate, the memo should probably at least allege a lack of probable cause or identify a false statement of fact in the application. Neither of those happened here. The circumstances of the release were also somewhat troubling. Here, HPSCI voted on party lines not to release the Democratic minority’s report at the same time. Here, the HPSCI majority rejected a request by Democrats that the FBI and DOJ be allowed to brief the committee on areas where they think the memo goes astray, saying that the committee should not be briefed by the agencies it is investigating (what?). Those facts belie the notion that the memo was released to promote transparency. The fact that at least one member of Congress has already called for treason prosecutions against FBI and DOJ officials based on a memo that is pretty flimsy even viewed in its best light is, to me, indicative of a less-than-scrupulous attitude toward the release of national security information. The omissions in the memo are far more serious than those the memo alleges in the FISA application (even assuming the memo is true in all its particulars), and themselves show that the drafters were not especially rigorous in their analysis. Others may fairly disagree, but I don’t think this is a very proud day for intelligence oversight.

Aaron Brecher focuses his practice on investigations, compliance and white collar defense as well as privacy and data security. He’s passionate about helping individuals and companies through some of their most difficult and sensitive challenges: investigations that could lead to government enforcement actions and resulting litigation.

Aaron is a co-founder and frequent contributor to Target Letter, the blog maintained by Lane Powell’s Investigations, Compliance & White Collar Team, among other thought leadership. In addition to his compliance and enforcement work, he represents clients in antitrust, intellectual property, and securities litigation as well as qui tam and False Claims Act litigation.

Before entering private practice, Aaron worked as a Law Clerk with both the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Central District of California.

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Target Letter—published by the attorneys of Lane Powell’s Investigations, Compliance & White Collar Team—is a resource for those who are in need of practical information and valuable insights covering a broad range of government investigations and state and federal criminal and civil proceedings. The blog’s authors frequently appear before courts and agencies throughout the country in a wide variety of matters and at all stages of proceedings and use this platform to keep readers up-to-date on the latest trends and changes in the regulatory world. To receive future updates, subscribe to the blog by email or RSS feed.

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Target Letter—published by the attorneys of Lane Powell’s Investigations, Compliance & White Collar Team—is a resource for those who are in need of practical information and valuable insights covering a broad range of government investigations and state and federal criminal and civil proceedings. The blog’s authors frequently appear before courts and agencies throughout the country in a wide variety of matters and at all stages of proceedings and use this platform to keep readers up-to-date on the latest trends and changes in the regulatory world. To receive future updates, subscribe to the blog by email or RSS feed.